This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ryan James Tobin, petitioner,
Commissioner of Public Safety,
Washington County District Court
File No. C8-03-4313
Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN† 55101 (for appellant)
Mike Hatch, Attorney General, Willow Najjar, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101 (for respondent)
††††††††††† Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge*.
At the Washington County Jail, Kalinoff read Tobin the Minnesota Implied Consent Advisory.† Kalinoff advised Tobin that his time to consult with an attorney was limited and that, if he could not contact an attorney, Tobin would have to decide on his own whether to take a breath test.† Tobin requested an opportunity to consult with an attorney.†
At 1:59 a.m., Kalinoff provided Tobin access to a telephone and telephone directories.† Tobin then asked to go to the restroom.† Kalinoff allowed Tobin to use the restroom but reminded him that this was his time to consult with an attorney.† Tobin began placing calls to attorneys at 2:03.† Tobin placed five calls between 2:03 and 2:19.† For seven minutes, between the second and third calls, Tobin ceased his attempts and asked Kalinoff several questions.† At 2:20, Kalinoff warned Tobin that he had nine minutes remaining to consult with an attorney, after which he would have to decide whether to take the test.†
A person arrested for driving while impaired has a limited right to consult with an attorney before deciding whether to submit to chemical testing, provided that the consultation does not unreasonably delay the testing.† Friedman v. Commír of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (holding that the right to counsel is limited due to the ďevanescent natureĒ of alcohol).† This limited right to counsel affords the driver the right to consult with an attorney of his or her choice.† Gergen v. Commír of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).† If counsel cannot be contacted within a reasonable time, the driver is required to make a decision regarding testing without the benefit of counsel.† Groe, 615 N.W.2d at 841.
Here, the record establishes that Tobin received access to a telephone and directories and 32 minutes to contact an attorney.† Kalinoff warned Tobin at the outset that the available time would be limited and warned Tobin again when he had nine and three minutes remaining.† Kalinoff testified that he had three reasons for limiting the time to consult with counsel:† He needed to ensure that the Intoxilyzer test was successfully administered within two hours after Tobinís driving; he was concerned that Tobinís alcohol concentration would fall below .10 if more time elapsed; and, because his department was understaffed, he needed to return to his patrol for public safety.†
Tobin challenges the sufficiency of these reasons to establish that 32 minutes was a reasonable amount of time to vindicate the right to counsel.† We disagree.† An officer must be allowed to make a reasonable determination that a driver has had sufficient time to consult with counsel.† Palme, 541 N.W.2d at 345.† Implied consent laws are liberally interpreted in favor of the publicís interests and against the private interests of drivers.† Parsons,488 N.W.2d at 502.† The risk to public safety created by a reduced number of officers on patrol is a legitimate public-interest consideration.† Id.† Because alcohol is evanescent, preventing the deterioration of evidence also is a reasonable concern.† Id.† Accordingly, we conclude that the amount of time afforded Tobin was reasonable under the circumstances and that Kalinoffís actions were not arbitrary.
*† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.
† Although Tobin was advised to ask for more time to contact another attorney, Tobin declined to do so and consented to take the breath test because he assumed that the time was not negotiable.
† It is undisputed that Kalinoff was not required to provide him with the results of the PBT.† See Hartung v. Commír of Pub. Safety, 634 N.W.2d 735, 738 (Minn. App. 2001) (holding that police are not required to disclose a driverís PBT results), review denied (Minn. Dec. 11, 2001).†